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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

No. 6. — Memorandum by the Hon. C. W. Richmond

No. 6.
Memorandum by the Hon. C. W. Richmond.

Individualization of Native Title.—Native Territorial Rights Bill.

The Native Territorial Eights Bill affects the most difficult and delicate question with which the British Government in New Zealand has to deal; and the Legislature, in touching on it, has shown a corresponding caution.

The subject has two aspects: the one relating to the civilization of the Natives, the other to the promotion of the settlement of the country by Europeans. Ministers hold that these two objects, truly viewed, are ultimately inseparable. The purpose of the measure is, however, to place in the hands of the Government a new and powerful instrument for the civilization of the Natives, and by no means to increase the immediate facilities for the acquisition of land by the Europeans. It is notorious that the most frequent and bloody Maori feuds arise, and have always arisen, from disputed title to land.

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The four existing quarrels which have been referred to have all this origin, and others that could be mentioned are at this moment smouldering. It is equally indisputable that the communistic habits of the aborigines are the chief bar to their advancement. Separate landed holdings are indispensable to the further progress of this people. Chastity, decency, and thrift cannot exist amidst the waste, filth, and moral contamination of the pas.

In order to strike at the root of these evils, the Bill provides—first, for the ascertainment and registry of tribal title; secondly, for the issue of Crown grants to individual Natives of lands ceded for the purpose by their respective tribes.

The propriety of making at least an attempt to provide means for the extrication of Native title from its present entanglement, for reducing it to fixed rules, and for subjecting it to the jurisdiction of regular tribunals, can hardly admit of a doubt. Even if it appeared that such an attempt might involve a certain amount of risk, that surely ought not to deter a great Christian Power from some effort to avert the shame and the sin of remaining, what Her Majesty's representative in these Islands is at this moment, the passive witness of murderous affrays between Her Majesty's subjects, almost under the guns of her garrisons. But no such risk is really incurred. The interference of the Executive Government to adjust land disputes remains under the Bill purely optional. The Bill throughout all its provisions is permissive, and the plan must by no means be confounded with the compulsory registration of Native title, provided for by the Royal Instructions of 1846. Ministers are aware that good can only be effected by proceeding with the greatest caution. They desire nevertheless to make a timely step in advance, as being not only the justest but the safest course—as the surest means of avoiding future complications. This is a case in which it would be found that "â froward retention of custom is as turbulent a thing as an innovation."

The grants to individual Natives will effect a gratuitous transmutation of the Native title of occupancy into an English fee-simple. It is a difficult question whether lands so granted should or should not be alienable to Europeans. Perhaps no general rule can be laid down. In some cases it might be desirable to secure the heirs of a spendthrift chief against the effect of his extravagance. In other cases no sufficient reason might exist for withholding the full powers of ownership. It has, therefore, been left discretionary with the Government to impose restrictions on alienation. Occasionally it is probable that the power of restraining alienation might be usefully employed to prohibit acquisitions of land by Europeans in remote districts. At all events, it will be seen that, under the provisions of the Bill, the Government retains undiminished its present power of checking dispersed settlement of the country by Europeans. Although the measure was not framed with any direct view to colonizing objects, it cannot be doubted that the proposed registration of Native title (too long neglected) would facilitate the operations of the Land Purchase Department, and the acquisition, by cession from the tribes, of fresh territory. At present there are no fixed rules whatever as to what shall be recognized as valid claims to share in the money paid for the surrender of the Native right. Absurd and vexatious disputes constantly attend the negotiations of the department, and are only settled by a large expenditure of colonial funds.

Under the second division of the Bill a small extent of lands might come into European hands by purchase from the Native donecs. Upon all such transactions the 11th section imposes a tax of 10s. per acre, payable by the purchaser. The fund thence accruing, it is provided, shall be expended in public works and improvements on the land or in its neighbourhood. Ministers consider that it is by no means desirable that such purchases should become, at present, the favourite mode for the acquisition of land by European settlers; and the amount of the proposed tax is designedly placed sufficiently high to prevent many such transactions taking place. Ten shillings per acre is the ordinary price of waste lands in all the provinces of the North Island, and the amount of the tax will consequently operate differentially in favour of the ordinary mode of purchase.

So long as the loan for the extinction of Native title holds out, and it is possible to obtain a cession of tribal rights over considerable tracts of country through the operations of the Land Purchase Department, it appears preferable that the European settler should purchase of Government rather than of Natives holding Crown grants. At the present rate of expenditure the loan will not, however, last more than five or six years, and an immense area will be left still subject to the Native title. It therefore behoves those who direct the affairs of the country to look forward and consider of a substitute for the present system, which at the expiration of that period may be capable of being worked on an extensive scale, and may supply the two essentials—land and a Land Fund. The best plan which has suggested itself to the present Advisers of the Crown is that the Native title, being first carefully ascertained by proper officers, should be gradually commuted into English fee-simple; that the land should remain unburdened whilst in Native hands, but that a tax should be paid by the European purchaser, and that its proceeds should be devoted to the improvement of the country. The present measure, in its secondary aspect of a colonizing measure, may be regarded as a cautious experiment of such a plan on a very small scale. If found to work well the principle might in future years be extensively acted upon.

Objections to Native Territorial Rights Bill discussed.

It now becomes necessary to advert specially to certain objections which have been raised to the Bill under consideration. The first is that the power of issuing grants to Natives is vested in the Governor in Council, instead of in the Governor solely, thereby necessitating the concurrence of the Responsible Ministry of the day. This is alleged to be a departure from the terms of His Excellency's memorandum of the 15th April, 1856, establishing Responsible Government. By the memorandum of the 15th April, 1856, the Governor reserves to himself the right of acting upon his own responsibility, in opposition to the advice of Ministers, upon Imperial questions, including questions affecting the relations of Government with the Native tribes. Obviously the memorandum could only affect the existing powers and prerogatives of the Crown. It was not competent to the Governor to stipulate as to the conditions under which new and extraordinary powers should be conferred by the General Assembly upon the Executive, nor did His Excellency attempt to do so.

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Looking at the question as one of abstract constitutional principle, no Ministry could propose to intrust a power vitally affecting the relations of the settlers and Natives, and the pecuniary resources of the colony, to the discretion of a single individual, however elevated his position, who must commonly possess only a limited experience and a transitory interest in the affairs of the country. Even in a Crown colony acts of so high a nature are often required to be done with the advice of the Executive Council. It appears surprising that the General Assembly could by any person be expected to make over, without any guarantee for its exercise in accordance with public opinion, a power greater than was ever intrusted by the Imperial Government to the Governors of this colony; but a power which, it is not forgotten, was by one of those officers illegally assumed, and employed in a manner of which the evil effects have not, after a lapse of fourteen years, entirely passed away. Ministers feel assured that the Colonial Legislature could never be brought to sanction the concession of such an unlimited discretion, more especially considering the effect of its possible abuse upon the future produce of the territorial revenue, and the heavy liabilities of the colony to the Home Government and the public creditor. The power is virtually a power over the public purse, which, to a limited extent and under due guarantees, the General Assembly has shown itself willing to concede to the Executive for the good of the Natives, but which it is in vain to expect it will ever absolutely alienate.

The second objection taken to the Bill, which it seems requisite to notice, is that the imposition of of payment upon alienation to Europeans is an unjust exaction from the Native donee. To this it is answered that no Native is obliged to take a grant, or, having obtained one, to sell it to a European. By accepting the grant the Native's position is vastly improved, even though the power of alienation should be altogether withheld. But there is another sufficiently obvious fallacy in the objection. It is assumed that the acreage-tax reduces, pro tanto, the purchase-money. It is overlooked that the tax is applicable to the improvement of the land sold, and thereby increases its value in most cases to a greater amount. The sum payable into the Treasury is no part of the price of the land. It is the price of the improvements. But what really lies at the root of this objection is a doctrine so mischievous and unfounded that it requires special notice. It is asserted that the Native is really entitled to an absolute grant in fee-simple of whatever territory his tribe may think fit to make over to him in severalty, however extensive, and that to refuse such a grant—at least to impose any condition which does not operate for the sole and exclusive benefit of the Natives—is unfair. To make the Crown's right of pre-emption productive of a Land Fund—either in the way in which it is now made productive, viz., by means of sales of land ceded to the Crown at a low rate and disposed of at an increased price, or by the proposed tax on alienation—is regarded as essentially unjust to the Natives, who, it is thought, ought fairly to receive the whole purchase-money. In accordance with this view, the difference between the price paid to the Natives and the selling price of land has sometimes been represented to be a contribution by the Natives to the revenue of the colony, entitling them (if justice were done) to the expenditure, for purely Native purposes, of a largely-increased proportion of the colonial funds. And, as to the present system of purchases, it is regarded as nothing less than a systematic fraud practised by a civilized Power upon its ignorant subjects. This doctrine, it will be seen, reduces the Crown from the possession of a substantial power over the whole territory of New Zealand—which power it is bound to employ for the benefit of all its subjects—to the condition of a bare trustee for the Maoris. But the Crown's right of pre-emption (which no officer of the Crown, at least, will venture to question) was reserved avowedly for colonizing objects—i.e., to enable the Government to promote and systematize the settlement of the country. The exercise of the power for these objects, even if inconsistent with the pecuniary interest of the Natives, could not be reasonably objected to on their behalf. The Natives have always fully understood and acknowledged the right of the Crown to impose such terms as it pleases upon its own European subjects who seek to settle the country. But it has already been demonstrated that it is altogether a mistake to suppose that any pecuniary interest of the Natives is interfered with by the employment of the Crown's right for the purpose of raising a revenue in the way proposed. The enhanced price received by the Government is really the price, not of the land, but of the improvements which the Government undertake to execute out of what are improperly called its profits. This is strictly true as to the country as a whole, though it may not be so of every hundred acres of land sold. The enhanced value of the land is due to the immigration and public works which the Colonial Land Fund has been the means of carrying on.

The notions above combated arise from a narrow view of Native interests which those who devote an exclusive attention to Maori questions appear, unfortunately, somewhat apt to contract. The affairs of New Zealand can only be successfully administered on the basis of a hearty belief in the real identity of the interests of the two races. In a large view it is quite as important to the Native as to the European that the resources of the colony should not be crippled by the destruction of its Land Fund. And, if the possibility of diverting the territorial revenue of the Northern Island into the pockets of the Natives were a reality, instead of a glaring economical fallacy, it is certain that such an accession of wealth to men only partially emerged from complete barbarism would speedily prove their ruin. The real effect of acting upon such doctrines would be to hand over large tracts of country to a class of land-jobbers, destitute of the means of rendering their purchases available. The traffic in the lands would fall into the hands of a set of middle-men, whose transactions and connections with the Natives—not always of a lawful or reputable character—gave them special influence. Intending immigrants, learning that land was no longer attainable except through private hands, and that the country lay unimproved, would be deterred, and the hope of a regular colonization would be not merely deferred, but destroyed. In short, it will appear that the proposition of the objectors to the Bill to confer on the Governor an unlimited power of granting lands to the Natives, which shall be alienable to Europeans without any payment into the Colonial Treasury, is simply asking the Colonial Legislature to authorize and invite a renewal of Governor Fitzroy's proceedings on the issue of the well-known "penny-an-acre Proclamation" of 1844, and thereby to endanger at once the peace and public credit of the colony, and the prosperity of all Her Majesty's subjects within its limits.

To avoid a tedious detail of minor objections to the Bill, Ministers transmit herewith copies ofpage 10 memoranda by two of the permanent officers of the Native Department who disapprove of the measure, and suggest one of the character which has already been indicated. The few comments which Ministers feel it necessary to make on these memoranda appear in the margin of the copies. Ministers would regret that Her Majesty should be advised to withhold assent to this Bill, chiefly because that course would deprive the Executive of the colony of a useful engine for the civilization of the Natives; but they conceive that the absence for a time of any legislation on the subject, though prejudicial, would be infinitely preferable to the highly dangerous and unconstitutional measure which it has been proposed to substitute for the Ministerial Bill.

C. W. Richmond.

29th September, 1858.